86 Cal. 134 | Cal. | 1890
Lead Opinion
This appeal is taken from an order refusing to dissolve an injunction. The defendants had caused an execution to be levied upon the homestead of the plaintiff, issued under a judgment obtained against him in a justice’s court by one H. C. Howard. It is charged in the complaint that the defendant Insley, as constable, has levied upon the property, and is about to sell it under execution, and that the defendant Montgomery applied to the justice of the peace and had the execution issued'without authority; that Insley has been duly notified that the property he has levied upon and advertised for sale is the homestead of the plaintiff, and exempt from execution; but that nevertheless the defendants are about to, and unless restrained by the superior court “ will, sell plaintiff’s said homestead property at forced sale to satisfy said judgment.” It is further stated that the sale contemplated would cast a cloud upon the plaintiff’s title to the property, and “ would irreparably injure and disturb plaintiff in the quiet enjoyment of said premises, and that plaintiff has no speedy and adequate remedy at law.”
The court below granted a temporary injunction as prayed for. A motion was then made to dissolve said injunction; upon that motion, which, as we have seen, was denied, an affidavit was read that the plaintiff’s
Conceding that, taking the complaint and declaration of homestead together, it appears that the only claim to be the head of a family which the plaintiff ever had was as a son with whom his mother resided on the property, and under his care and maintenance, under section 1261, subdivision 3, of the Civil Code, it appears to us that, under the statute governing the present matter, and hereafter cited, the homestead levied upon was exempt from the sale about to be enforced against it.
The decisions in Revalk v. Kraemer, 8 Cal. 73, 68 Am. Dec. 304, and Santa Cruz Bank v. Cooper, 56 Cal. 340, cited by the appellant in support of his contention, are not in point. At the time they were made, section 1265 of the Civil Code, as amended in 1880, was not the law. That section, at the time the declaration of homestead under consideration was made, read and now reads: “From and after the time the declaration is filed for record, the premises therein described constitute a homestead. If the selection was made by a married person from the community property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devi
There is no question raised here that the property was not a homestead, or that it was liable mr any debt of the owner at the time it was declared, or that he was not the head of a family, and entitled to it as a homestead exempt from forced sale for any such debt as that on which the execution in this instance is founded; but the contention is that it became liable, after the death of his mother, to be sold under execution, as any other property of the plaintiff might be liable for any of 1ns debts. Under the plain language of the statute just quoted, it would appear that when the homestead was once declared, it remained as such, always exempt from forced sale as against any liability of the owner, except as provided in the provisions of the title of which it was a part. And as the debt here was not one for which, under that title, the property was liable, it must follow that the attempt to sell the property was forbidden by law, and a sale could vest no title in the purchaser.
But it is further urged that if such be the law the plaintiff was not entitled to an injunction, since no cloud would be cast upon his title by the sale, and hence no irreparable injury could result. The authorities do not sustain this view of the matter; for if the sale under execution had taken place, and a deed to the purchaser been made, and all other proceedings in the matter were' valid, and an action in ejectment had been brought by the appellants to recover from the plaintiff the possession of the property, the proceedings and muniments of title -which the plaintiffs in that action would produce would not show on the face thereof that such plaintiffs had no title to the property. It would be necessary, in order to defeat their action, that the defendant there, respondent here, should introduce extrinsic evidence to
The appellants claim further error in that they xirge that respondent could have applied to the justice of the peace who issued the execution and had the same recalled; hence that no necessity for an injunction existed, and none was proper. Inasmuch as. the record shows that the judgment was valid and binding against the defendant in execution and his property, save that which was exempt as a homestead, and the execution likewise, the court having jurisdiction to render the judgment and issue the execution, we perceive no reason why, at the request of the defendant therein, even if he had made such application, the justice would have been authorized to recall the execution which the constable had levied upon exempt property, but which could have been levied properly upon other property of the defendant if he had chanced to have any.
As to the point made, of the insufficiency of the complaint, as setting up facts showing threatened irreparable injury, we perceive no merit in it; as the pleading in question set out the facts showing that a cloud upon the title was threatened, and would be accomplished unless
Belcher, 0. 0., and Gibson, 0., concurred.
The Court. — For the reasons given in the foregoing opinion, the order is affirmed.
Concurrence Opinion
I concur in the judgment. The declaration of homestead in this case did not show that the claimant was the head of a family. It merely stated that he was, at the date of the declaration, actually residing on the premises with his mother, and altogether fails to state that she was under his care and maintenance, a condition made essential by the statute. (Civ. Code, sec. ,1261, subd. 2.) But it was a good declaration for any person other than the head of a family (Civ. Code, secs. 1266-1269), and sufficient to secure a homestead right of exemption to the extent of one thousand dollars. (Civ. Code, sec. 1260.) Such being the case, the homestead could not be sold under execution upon a judgment other than one of those enumerated in section 1241 of the Civil Code, without taking the steps prescribed in section 1245 et seq. For these reasons the injunction was proper. The question is not necessarily involved in this appeal, and cannot be decided here, but I think it ought not to be intimated that the homestead of the head of a family remains exempt in his hands to any greater extent than one thousand dollars, after he has ceased to be the head of a family.
